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Axelrod & Cherveny Architects, P.C. v. Winmar Homes

March 6, 2007


The opinion of the court was delivered by: VITALIANO, D.J.


Plaintiff Axelrod & Cherveny Architects, P.C. ("Axelrod & Cherveny") brings this action against defendants Winmar Homes ("Winmar"), a residential building company, and Anthony Martino ("Martino"), the president and half-owner of Winmar, alleging that defendants misappropriated one of its home designs that is protected under the Architectural Works Copyright Protection Act, Pub. L. No. 101-650, §§ 701-706, 104 Stat. 5089, 5133-34 (1990) (codified in scattered sections of 17 U.S.C.). All parties have moved for summary judgment. For the reasons set forth, defendants' motion for summary judgment is granted in part and denied in part, and plaintiff's cross-motion for summary judgment on liability for copyright infringement is granted in its entirety.


The facts surrounding defendants' infringement are straightforward and largely undisputed. Glen Cherveny has testified that, in or around October 1996, he authored the design for a home that was later built in Suffolk County, New York. The design was entitled "Island Estates at Setauket Canterbury, Canterbury 96027" ("Canterbury Design"). On December 29, 2003, Axelrod & Cherveny was issued a certificate of copyright registration (No. VAu607-406) for the Canterbury Design.

Defendant Winmar is a Suffolk County contractor that builds single-family residences. (Martino Aff. ¶ 2.) In early 2002, Winmar was acting as the general contractor for a development of new residential homes in Sayville. Chris Capitelli, a real estate agent, was involved in advertising and/or marketing the Sayville properties. In May 2002, Capitelli met with prospective buyers Khairunnisa and Ali Malik, who were responding to his internet advertisement. The Maliks had earlier and independently come upon a home built with the Canterbury Design. They showed Capitelli a marketing brochure, floor plan, and pictures of the Canterbury Design and asked if Winmar could build a similar home at its development in Sayville. Capitelli, in turn, faxed the Canterbury materials to Winmar's president, Martino, who subsequently met with the Maliks. (Martino Dep. at 27-29.) The Maliks showed Martino a picture of the Canterbury Design and again asked if Winmar could build something similar. (Id. at 52-53 ("They took the picture, the snapshot picture was taken from somebody's house. That's exactly what they wanted, the color and everything."); A. Malik Dep. at 17.) Martino responded by showing the Maliks what he thought was a similar plan, called "the Federico," which was dated May 12, 1998, but which lacked any indicia of authorship or copyright.*fn1 (Martino Dep. at 51.) Martino suggested that the Maliks meet with Joseph Cacioppo, an architect who prepared the designs of 18 of the 19 homes built at the Winmar development. (Id. at 24.) They later met with Cacioppo, who then designed a plan for the Maliks based on their discussions, a picture of the Canterbury Design, and materials pertaining to the Federico Design. (A. Malik Dep. at 26.)*fn2

Cacioppo's finished plan, with an attached copyright notice, is dated August 23, 2002. As conceded by all parties and discussed infra, Cacioppo's design is very similar to the Canterbury Design.

On October 20, 2002, the Maliks entered into a contract with Winmar to build the Cacioppo-designed home at the Sayville development. It is uncontested that Axelrod & Cherveny never authorized or otherwise consented to Winmar or Cacciopo utilizing the Canterbury Design to build the Malik home. In fact, Axelrod & Cherveny had no awareness of the home until after it was built, when, in or around November 2004, Glen Cherveny happened to drive into the development in Sayville. There, he observed the Maliks's home, which he thought was identical to his Canterbury Design. (Cherveny Aff. ¶ 6.) Cherveny obtained the home's building permit and plans from the Town of Islip, and after reviewing those documents, determined that the Sayville home was substantially similar, if not identical, to his Canterbury Design. (Id. ¶¶ 9, 13.) Axelrod & Cherveny brought this suit on February 4, 2005 against defendants Winmar Homes and Anthony Martino, alleging copyright infringement. Defendants are now moving for summary judgment on all of Axelrod & Cherveny's claims*fn3 and Axelrod & Cherveny is cross-moving for summary judgment on its copyright infringement claim.


Architectural Works Copyright Protection Act The Copyright Act protects "original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device." 17 U.S.C. § 102(a). With the passage of the Architectural Works Copyright Protection Act in 1990, architectural works were added to the list of copyrightable works of authorship. 17 U.S.C. § 102(a)(8). The Copyright Act defines an architectural work as the design of a building as embodied in any tangible medium of expression, including a building, architectural plans, or drawings.

The work includes the overall form as well as the arrangement and composition of spaces and elements in the design, but does not include individual standard features.

17 U.S.C. § 101. According to the legislative history of the Architectural Works Copyright Protection Act,

[t]he phrase "arrangement and composition of spaces and elements" recognizes that: (1) creativity in architecture frequently takes the form of a selection, coordination, or arrangement of unprotectible elements into an original, protectible whole; (2) an architect may incorporate new, protectible design elements into otherwise standard, unprotectible building features; and (3) interior architecture may be protected.

H.R. Rep. No. 101-375 (1990), reprinted in 1990 U.S.C.C.A.N. at 6935, 6949. Under current law, architectural works are generally subject to the same standards as other copyrightable works. See Attia v. Soc'y of the N.Y. Hosp., 201 F.3d 50, 53 n.3 (2d Cir. 1999) (citing 1 2.20, at 2-216 (1998)); Shine v. Childs, 382 F. Supp. 2d 602, 608 (S.D.N.Y. 2005).

Certificate of Copyright Registration

Registration is a prerequisite to bringing suit for copyright infringement. 17 U.S.C. § 411. Defendants contend, at threshold but at length, that Axelrod & Cherveny never registered its copyright in the Canterbury Design as an architectural work; instead, they claim, Axelrod & Cherveny has only registered its copyright in the technical drawings that depict the Canterbury Design. Though an author may obtain a copyright certificate for both an architectural work and the blueprints that depict the work, each item must be registered separately, and an author must submit a separate registration form, Form VA, for each:

(3) Applications form. Registration should be sought on Form VA. Line one of the form should give the title of the building. The date of construction of the building, if any, should also be designated. If the building has not yet been constructed, the notation "not yet constructed" should be given following the title.

(4) Separate registration for plans. Where dual copyright claims exist in technical drawings and the architectural work depicted in the drawings, any claims with respect to the technical drawings and architectural work must be registered separately.

37 C.F.R. § 202.11(c). In attempting to show that Axelrod & Cherveny's copyright is in the blueprints, defendants argue that the Court need look no further than Axelrod & Cherveny's registration form,*fn4 which, in the "nature of work" space, clearly and explicitly states "blueprints".*fn5

Axelrod & Cherveny counters that the words contained within the "nature of work" space should not be dispositive. Instead, Axelrod & Cherveny proposes that the Court look to a separate section of the Form VA where an applicant has a choice of boxes to check, with each box representing a different "nature of authorship". There, Axelrod & Cherveny had the choice of choosing either a box for "architectural work" or for "technical drawing". It chose "architectural work". Axelrod & Cherveny explains that "blueprints" was written in the "nature of work" space only to indicate what type of item was being submitted as a depiction of the architectural work.

It is well established that a mere innocent error in classification will not ordinarily, in itself, "invalidate or impair copyright protection." L. Batlin & Son, Inc. v. Snyder, 536 F.2d 486, 490 n.2 (2d Cir. 1976); Hamil America, Inc. v. GFI, 193 F.3d 92, 99 (2d Cir. 1999) ("[C]courts have consistently permitted a plaintiff to correct a defective recordation, and to go forward with the suit as of the date of the filing of the action.") (quoting Northern Songs, Ltd. v. Distinguished Prods., Inc., 581 F. Supp. 638, 641 (S.D.N.Y. 1984)) (alteration in original); see also 2 NIMMER ON COPYRIGHT § 7.20[A] (2006) (characterizing an error in classification as the type of error that the Copyright Office may correct on its own initiative). But, invalidation for error is an issue that the Court need not reach on the facts here.

Indeed, this very circumstance was addressed and resolved by the Copyright Office in its response to the Third Circuit's decision in Raquel v. Educ. Mgmt. Corp., 196 F.3d 171 (3d Cir. 1999), vacated, 531 U.S. 952 (2000). In Raquel, as here, the plaintiff had misidentified the nature of its copyright in the "nature of work" space but correctly identified the nature of its copyright in the "nature of authorship" space. Id. at 178 n.3. The majority held that the material misstatement in the "nature of work" space failed to give adequate notice to the Copyright Office of exactly what type of copyright plaintiff had claimed. Id. at 178-79. As such, the circuit court affirmed the district court's dismissal of the action. Id. at 182. In attempting to distinguish the long line of cases where courts have held that inadvertent errors do not warrant dismissal of an infringement action, the majority reasoned that: (i) plaintiff's error went to the very nature of the copyright; (ii) plaintiff's error was more material because it mistakenly identified a copyright that plaintiff had not authored, and thus (iii) the certificate would have been rejected if the Copyright Office had investigated further. Id. at 177-78.

First, the Raquel majority misapplied the law. In dissent, then-Judge Alito, relying on Second Circuit precedent, argued that the majority's approach elevated form over substance:

The majority attempts to distinguish this long line of cases by pointing to the fact that Raquel's registration misidentified the nature of the work in question. This argument mischaracterizes the case law. No court of appeals has ever suggested that an inadvertent error in a registration statement-even an error as to the nature of the work-can bar an infringement action where the work would have been copyrightable had the registration statement contained a correct statement of facts. Indeed, in Baron v. Leo Feist, Inc., 173 F.2d 288 (2d Cir. 1949), the Second Circuit dealt with precisely the issue of misidentification of the nature of a copyrighted work in its registration. In Feist, the plaintiff's registration certificate referred only to the arrangement of the subject song. Nevertheless, the Second Circuit held that the registration was sufficient to maintain an action based on infringement of the song's melody because there was no contention that the defendants were "misled by the certificate of registration."

Id. at 184-85 (internal citations omitted). This dissenting view is in full accord with the longstanding copyright principle that, since "registration is not a condition of copyright protection," see 17 U.S.C. § 408(a), courts should not treat the registration requirement as a technical trap, and inadvertent mistakes should only become an issue when they are detrimentally relied upon.

Second, as a factual matter, the Raquel majority overvalued the significance of the plaintiff's "misstatement." In response to the Third Circuit's decision, the Copyright Office issued a statement of policy to avoid "the possibility that other courts will rely on Raquel as valid precedent for invalidating copyright ...

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